Omar, Dr Imtiaz --- "War and Peace and the Commonwealth Constitution: a critical review of the prerogatives doctrine" [2006] NZYbkNZJur 6; (2006) 9 Yearbook of New Zealand Jurisprudence 71

Last Updated: 19 April 2015

War and Peace and the Commonwealth Constitution: A Critical Review of the Prerogatives Doctrine

Dr Imtiaz Omar*

i. INTRODUCTION

In recent times the defence power of the Commonwealth Constitution has been relied upon by the Executive and Parliament in Australia for purposes of overseas troop deployment, enacting anti terrorism legislation and other measures. With reference to anti-terrorism legislation reliance has also been placed on the external affairs power for giving effect to UN Resolutions, and bilateral and multilateral treaties. The use of the executive defence power and Parliament’s reliance on the defence and external affairs powers to enact specific legislation are, however, debatable.

This paper argues that the exercise of the executive power under s 61 of the Constitution in so far as it relates to the ‘prerogatives’ of war and peace must be accountable to Parliament. In this regard the nature of the ‘prerogative powers’ in the constitutional context of Australia is reviewed and it is suggested that use of these powers must always be subject to parliamentary control.

The latter part of the essay subjects the use of, and constitutional justification offered for, the use of the defence power of the Executive in Australia to a critical review. Comparative references from other constitutional systems are included in this regard. The article concludes on the note that it is imperative that legislation be adopted to control and regulate the use of the executive defence power. The broad structure and contents of such a proposed law is included at the end.

The article does not deal with the issues surrounding the justification of war and aggression in International Law. Likewise, it is also not concerned with the UN Charter and its application to armed conflicts. There are however some brief comparative references to the UN sanctioned use of force in the first Gulf War and the absence of UN approval for the Iraq War in 2003.

* LLM Sask, Phd ANU, Senior Lecturer, School of Law, University of New England, Australia. This a revised version of a paper “Use of the Defence Power under the Australian Constitution” presented at the ALTA Conference, Waikato University, Hamilton, New Zealand, 4-9 July 2005.

ii. EXECUTIVE AND LEGISLATIVE POWERS UNDER THE COMMONWEALTH CONSTITUTION TO DEPLOY TROOPS IN FOREIGN COMBAT

In 1991, the First Gulf War, Australian troops were deployed at the Iraq borders in pursuant of a UN Resolution to force Iraq to withdraw from a sovereign country, Kuwait, that it had annexed earlier by force. The executive decision then was approved by Parliament. The Executive, during the course of the combat and the continuing deployment of Australian troops in the First Gulf War, kept the Parliament informed at regular intervals about the course of events. Details of the justification for the Cabinet decision, and the decision on recalling Parliament to debate and reaffirm the decision for the deployed troops to engage in active combat were stated in Parliament by Prime Minister Bob Hawke in the following terms:

On 4 December I formed the House that following a decision of Cabinet, Australia was prepared to provide forces to participate in operations under the United Nations Security Council resolution 678, should that become necessary. On 17 January, after consulting senior Ministers, I gave effect to that decision by authorising our naval task force in the Gulf to participate in such operations. I then formally notified the Leader of the Opposition (Dr Hewson) and the Governor-General of the Government’s action. I subsequently requested you, Mr Speaker, and the President of the Senate, to recall Parliament so that I can report to the Parliament and to the nation on this grave issue, and so that members of parliament can have the opportunity to express their views.¹

In 2003, Australia’s decision to participate in the Iraq war by the deployment of troops and subsequent active combat by them was reached by the Prime Minister John Howard and his Cabinet in pursuance of quite controversial arguments put forward by the USA relating to the threat posed by Iraq. These included the possession of WMD, ‘regime change’, ‘pre-emptive attack’, the need for a ‘coalition of the willing’, and so on. Despite inconclusive debates in Parliament about participation in combat, the Executive surreptitiously reached a decision to deploy troops. It was only subsequently announced that the troops had been sent to the Persian Gulf. Prime Minister John Howard expressed in categorical terms that the decision to commit troops to foreign combat was an Executive decision, but that Parliament should be informed, and a resolution passed in support of that decision.

The government has now authorized our defence forces, which were predeployed to the gulf ... to take part in the coalition operations ... Under our system, this decision lies with the executive of government: the cabinet.

1 Commonwealth, Parliamentary Debates, House of Representatives, 21 January, 1991 (Prime Minister Bob Hawke). http://parlinfoweb.aph.gov.au/piweb/view_document. aspx?ID=359570&TABLE=HANSARDR 21 January, 1991

Nevertheless, it is appropriate that the parliament, at first opportunity, have the chance to debate this motion. It is essential that the reason for that decision be made plain to the representatives of the people and that they have a full opportunity to debate them and to have their views recorded.²

The sequence of events were:

1. On 11 October 2002, US Congress authorizes an attack on Iraq.

2. On 23 January 2003, Australian troops leave on ‘forward deployment’ to the Middle East. It is to be noted here that Parliament was on recess then and was not due to sit until 4 February 2003. However, unlike the Government’s decision in the 1991 Gulf War to recall Parliament, no such action was taken then.

3. 16 March 2003: Howard committed the 2,000 deployed troops to assist in the US-led invasion of Iraq.

4. The decision to deploy troops was made by the Prime Minister and his Cabinet without consultation, and prior approval of Parliament, even in the form of a prior ‘parliamentary resolution’ to this effect.

5. The announcement of the decision for troop deployment and Australia’s participation in the Iraq war was made by the Prime Minsiter on 18

March 2003 at a press conference at Parliament House in Canberra.³

6. Later, on the same day, 18 March 2003, the Prime Minister informed the House of Representatives of this decision.⁴

7. The Governor-General was not involved in any way in this decision.

There was only a press release on the same day, 18 March, in which the Governor-General described the action by the Government to commit members of the Australian Defence Force to support a US-led coalition to disarm Iraq.⁵

8. On 18-20 March 2003, Parliament debated the deployment of

Australian troops to war.

9. On 20 March 2003, the House of Representatives passed a motion that:

2 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2003 (Prime

Minister John Howard).

3 See G. Lindell, ‘The Constitutional Authority to deploy Australian Military Forces in the

Coalition War against Iraq’ (2002) 5 ConstL&PolicyR 46, 47.

4 Ibid.

5 Lindell, ibid, quoting www.gg.gov.au/speeches/textonly/media/2003/mr030318.html. It is to be noted that in 1991 too, the Governor General was notified of the Government’s action to commit Australian troops to war after the decision was taken.

... [endorsed] the Government’s decision to commit Australian Defence Force elements in the region to the international coalition of military forces prepared to enforce Iraq’s compliance with its international obligations under successive resolutions of thee United Nations Security Council, with a view to restoring peace and security in the Middle East region ...⁶

10. On the same day, 19 March 2003, the Senate passed a motion to the effect that the Senate:

... believes that in the absence of an agreed UN Security Council resolution authorising military action against Iraq, there is no basis for military action to disarm Iraq, including action involving Australian Defence Force.

... opposes the decision of the Australian Cabinet and the President of the United States of America ... to commit troops to an attack on Iraq

... calls on the Government to immediately return Australia’s 2000

Defence Force personnel home.⁷

11. Part of the contingent of the Australian Defence Force still remains in Iraq (24 June 2005. There were calls by the Opposition in 2004 to return the troops by Christmas, but this demand was rebuffed by the Government.

iii. war, prerOgativeS, execUtive and LegiSLative pOwerS

The only express provisions of the Commonwealth Constitution that are relevant for an enquiry on the legitimacy and use of the defence, war, or national emergency powers of the Executive and the Legislature are ss 51(vi),

61 and 68.

Section 51(vi) is referred to as the ‘defence power’ of the Commonwealth. Under the provisions of s 51(vi), the Commonwealth Parliament is authorized to legislate with respect to the “naval and military defence of the Commonwealth and the several States”. The laws that Parliament passes under the ‘defence power’ have always been held to be subject to judicial review. The High Court has in the past employed criteria including pre-war, actual war, post-war, and peacetime situations to examine the constitutionality of legislation adopted under the defence power. In Australian Communist Party v Commonwealth

6 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2003.

7 Commonwealth, Parliamentary Debates, Senate, 18 March 2003.

(Communist Party case),⁸ among the several justices who held the Communist Party Dissolution Act 1950 (Cth) invalid as not being connected to defence in the prevailing peacetime situation, McTiernan J held:

It is of course for Parliament to measure the emergency confronting the Commonwealth and to take the legislative measures which are required to meet it. The only question for the Court is whether the measures have a reasonable relation to the emergency, and on that question the Court naturally gives very great weight to the opinion of parliament; but it would not allow the opinion of Parliament to be the decisive factor, that is to determine the matter finally and conclusively, without deserting its own duty under the Constitution.⁹

Section 61 is in the following terms:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Under old interpretation, the Governor-General, exercising powers under s 61 was only enabled to carry out those functions as the King (Monarch) might assign to him/her. Indicative of this approach was the majority view in Commonwealth v Colonial Combining Spinning and Weaving Co.¹⁰

[The Governor-General] is a special agent with power to carry out the Constitution and laws, and such powers and functions as the King may assign to him.¹¹

The minority, Isaacs and Starke JJ took a broad view of s 61 as a transfer to the GG of all the ‘inherent powers’ of the Crown in relation to the Commonwealth of Australia. The ‘inherent powers’ view was continued, among other cases, by Evatt and McTiernan JJ in R v Burgess; Ex parte Henry,¹² and Dixon and Evatt JJ in Official Liquidator of E O Farley Ltd v FCT.¹³ These views were clarified in later cases beginning the decision in Barton v Commonwealth,¹⁴ where Mason J explained the scope of the executive power in s 61 as including “the prerogative powers of the Crown, that is, the powers accorded to the Crown by the Common law.”

8 [1951] HCA 5; (1951) 83 CLR 1.

9 Ibid, 207.

10 [1922] HCA 62; (1922) 31 CLR 421.

11 Ibid, 454.

12 [1936] HCA 52; (1936) 55 CLR 608.

13 [1940] HCA 13; (1940) 63 CLR 278.

14 [1974] HCA 20; (1974) 131 CLR 477.

It was only beginning the decision in Barton v Commonwealth that the High Court has attempted to examine the constitutional and doctrinal basis of the executive power in s 61 of the Commonwealth Constitution. This is highlighted by Professor Winterton.

The executive power of the Commonwealth has largely been neglected, both by the High Court and by commentators, receiving scant attention in omparison to the Commonwealth’s legislative and judicial powers. The High Court has examined executive power on fewer than 10 occasions – principally three cases in the Whitlam era: Barton v Commonwealth ... the AAP case ... and Johnson v Kent ...- most recently, in the Bicentennial Authority Act case in

1988 ... (The power has, of course, also arisen in several Federal Court cases, most notably the Tampa case in 2001.)¹⁵

In Victoria v Commonwealth and Hayden (AAP case),¹⁶ although the majority justices did not explain s 61 as incorporating ‘prerogatives’, their reasonings were along the same lines as in Barton v Commonwealth. Justice Mason, for example observed that:

there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss 51(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of the nation and which cannot otherwise be carried on for the benefit of the nation.¹⁷

In Davis v Commonwealth (Bicentennial Authority Act case),¹⁸ three of the majority justices in their joint judgment, quoting observations in precedents, highlighted that:

s 61 confers on the Commonwealth all the prerogative powers of the Crown except those made by the Constitution except those that are necessarily exercisable by the States under the allocation of responsibilities made bt the Constitution and those denied by the Constitution itself.¹⁹

The discussion now turns as to what are ‘prerogatives’, and whether s 61 should be explained as an embodiment of prerogatives.

15 G. Winterton, ‘The Relationship Between Commonwealth Legislative and Executive Power’ [2004] AdelLawRw 3; (2004) 25 AdelaideLR 21, footnotes omitted.

16 [1975] HCA 52; (1975) 134 CLR 338.

17 [1975] HCA 52; (1975) 134 CLR 338, at 396.

18 [1988] HCA 63; (1988) 166 CLR 79.

19 Ibid, at 93-94.

Nature of Prerogatives

Sir Frederick Pollock made the following observations about the basic nature of ‘prerogatives’:

Prerogative is nothing more mysterious than the residue of the King’s undefined powers after striking out those which have been taken away by legislation or fallen into desuetude.²⁰

In AG v De Keyser’s Royal Hotel Ltd,²¹ a similar view was followed, albeit in obscure way, that legislation overruled a common law rule or principle. The Law Lords in this decision, however, differed in their views on the relationship between the legislative and the prerogative powers. Nevertheless, De Keyser is taken as an authority for the conceptual bases that statute law may abrogate or regulate the prerogative power.

A distinction can be made here between the rule of a ‘common law’ prerogative being overruled by a statute and the place of ‘prerogative’ in an explicitly written Constitution, such as the Commonwealth Constitution. The issue in this regard is whether in its interpretation and application, the executive power under s 61 of the Commonwealth Constitution or for that matter any other constitutional provision should be explained in terms of the ‘common law’.

Prerogatives and Section 61 of the Commonwealth Constitution: Conventional Views

As pointed out earlier, Mason J in Barton v Commonwealth,²² explained the scope of the executive power in s 61 as including “the prerogative powers of the Crown, that is, the powers accorded to the Crown by the Common law”. It has however been pointed out:

The Crown’s prerogative powers, once thought to be “inherent” or “organic” are now probably best understood as arising at common law. Such powers are not readily definable.²³

In his detailed study of executive and parliamentary powers in Australia, Professor Winterton has observed:

20 Editorial Note to V St Clair Mackenzie, ‘The Royal Prerogative in War-time’ (1918) 34

LawQR 152, quoted in T. Blackshield & G. Williams, Australian Constitutional Law and

Theory (2002) 518.

21 [1920] UKHL 1; [1920] AC 508.

22 [1974] HCA 20; (1974) 131 CLR 477.

23 Blackshield & Williams, supra n 20 at 516.

All the prerogatives of the Crown, except those inapplicable to Australian conditions ... have been inherited by either the Commonwealth or the States, or both ... .²⁴

Regarding the incorporation of the prerogative in the Commonwealth

Constitution he points out that:

The prerogative is incorporated in s 61 of the Constitution ... by virtue of its having vested ‘the executive power of the Commonwealth’ in ‘the Queen’. When seen against the British constitutional background, the vesting of executive power in the Crown was, in effect, a shorthand prescription or formula, for incorporating the prerogative - which is implicit in the legal concept of ‘the Queen’ - in the Crown in right of the Commonwealth. ... .²⁵

It has also been argued that:

Certain powers held by the executive are recognized by the common law. While these powers, too, are nowadays regarded as incorporated in s 61, they may also exist independently of and antecedently to it, since the Constitution is conceived of as coming into force “under the Crown”, that is, as presupposing the antecedent existence of the Crown and its powers.²⁶

Critique of the Semantics of ‘Prerogatives’ and their Purported Use

Since the Commonwealth Constitution is an explicitly written document detailing the powers, scope and limits of the principal organs of government

- the Executive, Legislature and Judiciary - the fundamental question arises whether s 61 of the Commonwealth Constitution or for that matter any other provision should be explained in terms of the ‘common law’ and the

‘prerogative powers’.

In this regard, Professor Sawer has asserted that:

It is more consonant with the present status of Australia to treat the Constitution as the sole source of power, and the position of the monarch as derived from its provisions – not even partly from the prerogative – and the Constitution can be so read.²⁷

In regard to royal documents like ‘Letters Patent’ and ‘Instructions under the

Royal Sign Manual’, he concluded that:

24 G Winterton, Parliament, the Executive and the Governor-General: A Constitutional

Analysis, (1983) 49.

25 Ibid.

26 Blackshield & Williams, supra n 20 at 516.

27 (1976) 52 Current Affairs Bulletin 20, quoted in Blackshield & Williams, supra n 20 at

534.

It is certain that in so far as the royal documents ... conflict with provisions

of the Constitution, they are invalid.²⁸

More recently, in the context of the contemporary scope of the prerogative power in Australia and its displacement by statute, French J has forcefully and persuasively affirmed that s 61 of the Commonwealth Constitution cannot be interpreted in terms of ‘prerogatives’: In his leading opinion in Ruddock v Vadarlis (Tampa case),²⁹ French J observed:

The executive power of the Commonwealth under s 61 cannot be treated as a species of the royal prerogative ... While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chapters I, II and III of the Constitution and as to legislative powers, between the polities that comprise the federation. The power is subject, not only to the limitations as to subject matter that flow directly from the Constitution but also to the laws of the Commonwealth made under it.³⁰

Justice Beaumont agreed with French J. In the circumstances of the case, which involved a controversy on the purported use of the ‘prerogative’ power in the face of the statutory provisions of the Migration Act 1958 (Cth), Black CJ, while not definitively ruling on this issue, made the following observations in the light of precedents:

This survey amply supports, in my view, the conclusion that it is, at best doubtful that the asserted prerogative continues to exist at common law. The affirmative assumed that the prerogative no longer exists may well be justified.³¹

In “All at Sea – Constitutional Assumptions and ‘The Executive Power of the Commonwealth,’”³² Bradley Selway (later Justice, Federal Court of Australia) is critical of French J’s view. This critique is based first, on the argument that, save for the views of Gummow J in Re Ditford; Ex parte Deputy Commissioner of Taxation,³³ and Re Residential Tenancies Tribunal; Ex parte Defence Housing Authority,³⁴ the assertion of French J lacks substantial authority. Secondly, Selway points to precedents where it was held that that

28 Ibid.

29 [2001] FCA 1329; (2001) 183 ALR 1.

30 Ibid, 49.

31 Ibid, 12.

32 (2003) 31 FedLR 495.

33 (1988) 19 FCR 347, 368-9.

34 (1997) 190 CLR 410, at 469-70.

the reference to ‘executive power’ in s 61 of the Commonwealth Constitution includes the prerogative and is subject to the common law limitations upon it.³⁵ Commentaries on s 61 are also highlighted by him.³⁶

Selway’s critique of French J’s position notwithstanding, what needs to be considered though is that the place of prerogatives in the Australian constitutional system has not been satisfactorily explained from a constitutional doctrinal perspective. In this regard, Professor Winterton, after considering earlier precedents and some recent decisions of the High court has commented:

More than half a century later, the High Court acknowledged that s 61 had never

been defined ... Indeed, its scope was not ‘amenable to exhaustive definition’

... As recently as 2000, the Court stated that the scope of the power ‘remains open to some debate’... .³⁷

The attempted explanations of prerogatives is largely derived from assumptions that can only be described as arising from ‘originalist’ interpretation³⁸ that

35 FedLR, supra n 32 at 497. Among the precedents cited by him is the recent High Court decision in Oates v Attorney General (Cth) [2003] HCA 21; (2003) 197 ALR 105.

36 The commentators cited in this regard are Winterton, supra n 24 at 27-34; J. Thomson,

‘Executive Power, Scope and Limitations: Some Notes from a Comparative Perspective’ (1983) 62 TexasLR 559; L. Zines, The High Court and the Constitution 4^th Ed (1997) 251-

257.

37 G. Winterton, ‘The Relationship Between Commonwealth Legislative and Executive Power’ [2004] AdelLawRw 3; (2004) 25 AdelaideLR 21, 24, footnotes omitted. Among the older precedents, Winterton cites the views of Isaacs J in Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) CLR 421; Evatt J’s views in R v Hush, Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487; and Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63

CLR 278. The most recent decision cited is R v Hughes (2000) 202 CLR 535 (per Gleeson

CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

38 Broadly speaking, originalism is an approach to interpretation that focus on the intention of the framers of the Constitution. An allied concept is ‘interpretivism’. Interpretivism as a judicial technique means that:

judges deciding constitutional issues should confine themselves to enforcing norms that are

stated or clearly implicit in the written Constitution. J. Ely, Democracy and Distrust (1981) 1.

In the USA, there is a wealth of literature on the choice of originalist or non-originalist interpretation. For a general account of the debate see, e.g., J. Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 FedLR 1.

has been repeatedly disavowed by the High Court.³⁹ Originalist interpretation is also based on arguments of the antecedent existence of the Crown and its powers before the Commonwealth Constitution came into operation. The thrust of this approach is that the Constitution should be conceived of as coming into force “under the Crown”, and on the legislative supremacy of the UK Parliament at 1901. In this regard, Professor Lindell has observed that:

In 1900, the Constitution was legally binding because of the status accorded to British statutes as an original source of law in Australia and also because of the supremacy accorded to such statutes. ⁴⁰

The issue of legal sovereignty highlighted here is however different from the

‘sovereignty of the people’. In this regard, Professor Zines has pointed out:

It is clear ... that the sovereignty of the people is not a substitute for the sovereign British parliament, but something quite different ... [T]he is no reason to limit the doctrine of sovereignty of the people to a period to a period when British sovereignty over Australia ceased. If ‘sovereignty’ is regarded as a wrong word to use for the people of a colony, there is no reason why the Commonwealth parliament and government could not from its beginnings, have been regarded as subject to a people that was, within the limits of colonial ststus, ‘supreme’, and with all the implied freedoms that representative government requires.⁴¹

The comments of Mason CJ in Australian Capital Television Pty Ltd v

Commonwealth⁴² are relevant in this regard.

39 In this regard, it has been observed:

From an early date the High Court refused to have regard to the Convention Debates for the purposes of ascertaining the intention of the authors: Municipal Council of Sydney v Commonwealth [1904] HCA 50; (1904) 1 CLR 208, at 213-14; L. Zines, The High Court and the Constitution

4^th Ed (1997) 480 n 23.

For a discussion on the High Court’s views on originalist and other approaches to interpretation see, for example, H, Burmester, ‘The Convention Debates and the Interpretation of the Constitution’ in G. Craven (ed.), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 25.

40 G. Lindell, ‘Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence’ (1986) FedLR 29, 32 (italics in original).

41 L. Zines, The High Court and the Constitution 4^th Ed (1997) 395.

42 (1992) 177 CLR 106.

Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people.⁴³

In the next section, the question of the exercise of the executive power under s 61 of the Commonwealth Constitution, in the context of responsible and representative government, is explored.

iv. reSpOnSiBLe gOvernment and SectiOn 61 OF the cOnStitUtiOn

It is accepted that in a parliamentary-executive type of government, or the system of responsible government, the Executive is accountable to Parliament, and Ministers of the ruling Government are individually and collectively responsible to Parliament. It is also accepted that the Cabinet deliberations are secret. The decisions of the Cabinet are however, put in an official legal form by the Executive Council. The functions of the Executive Council, with the Governor-General or his/her deputy presiding, is to put into legal form the decision of the Cabinet.⁴⁴ The constitutional distinction between a Cabinet decision and an Executive Council decision is important since Cabinet decisions are not judicially reviewable but an Executive Council decision can be subject to review.⁴⁵

For the sake of argument, even if s 61 can be explained in terms of the so called ‘prerogatives’, Professor Lindell acknowledges that:

it is clear that under the Westminster system of government Parliament may legislate to regulate the exercise and limit the exercise of prerogative powers.⁴⁶

The question that needs to be addressed in the context of this essay then is, parliamentary regulation of the so called ‘prerogative’ purportedly inhering in s 61 to committing Australian troops to foreign combat can be exercised without prior parliamentary approval.

43 Ibid, 138, quoted in Justice RS French,‘The Constitution and the People’, in R. French, G.

Lindell & C. Saunders (eds.), Reflections on the Australian Constitution (2003) 60-85, 73. It should be noted here that ‘popular will’ of the people in establishing the Commonwealth Constitution is acknowledged by Lindell, supra n 40 at 30.

44 For a discussion on the powers and processes of the Executive Council see, for example, Constitutional Commission, Final Report, Canberra, AGPS, 1988, at 333-4.

45 In this regard, see Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987)

75 ALR 218, 225 (Bowen CJ); 227 (Sheppard J); 247-8 (Wilcox J).

46 G. Lindell, ‘The Constitutional Authority to deploy Australian military Forces in the Coalition

War against Iraq’ (2002) 5 ConstL&PolicyR 46, 47.

Parliamentary Approval for Deployment of Troops

From the sequence of events noted at the beginning, the Government sent troops for ‘forward deployment’ to the Middle East (‘Persian Gulf’) in January

2003 without parliamentary approval, and then on 16 March the Prime Minister Howard committed the already deployed troops to combat in conjunction with the US for invading Iraq. It was a Cabinet decision, and the Governor General was not involved in the decision.⁴⁷

Three issues arise for consideration in this context. First, the issue whether the Cabinet decision is an exercise of the so called ‘prerogative power’ that may be argued as included in s 61 (that is beyond parliamentary regulation on a pre- or post- basis). Secondly, that the Parliament was presented with a

‘fait accompli’, and the House of Representatives approved the Government decision by ‘Resolution’. Thirdly, although the House of Representatives being dominated by the majority party of the ruling Government approved of the troop deployment, the Senate disapproved the decision. It might be noted here that in a parliamentary-executive model of government (or responsible government) like that of Australia, the lower House is always dominated by the ruling party; thus it is not difficult to get a resolution of this nature passed. What is important, however, is that parliamentary approval was not taken prior to the deployment of troops and to committing them to combat afterwards.⁴⁸

The position of Canada can also be highlighted in this regard. It participated in the Gulf War against Iraq in 1991. Like Australia, Canada has a parliamentary- executive model of government, and the Canadian Constitution has no express provision requiring prior approval of Parliament for deploying troops in foreign combat. In the 1991 war, however, the Canadian Government sought prior approval of the Canadian Parliament to participate, even though the deployment of Canadian troops was in pursuance of UN Security Council resolutions of 1990-1991.⁴⁹

It may be accepted that, in many instances, the decision to commit troops for foreign combat can be the based on ‘secret intelligence reports’ and other information that cannot be revealed to Parliament or be the basis of open deliberations. That was not the case in 2003 when the Executive in Australia

47 It should be noted here that, in the 1991 Gulf War too, the Governor-General was informed after the Cabinet decision authorizing Australian troops to participate in the Gulf War.

48 Prior parliamentary approval was also not taken by the Australian Government in the 1991

Gulf War.

49 This has been highlighted by Lindell, supra n 46 at 47.

decided to engage in the Iraq War. It can therefore be contended that prior approval of Parliament was essential in terms of the constitutional government established by the Commonwealth Constitution.

It is also a matter of concern that since March 2003 to date, no regular parliamentary approval was sought for continuation of the participation of Australian troops in combat in Iraq.⁵⁰

Section 68 and the Commander in Chief Argument

There is an argument that the Governor General plays a role in deployment of Australian troops in a war, and committing them to combat. The argument is based on s 68 of the Commonwealth Constitution. Section 68 provides:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor General as the Queen’s representative.

It has been pointed out, however, that this role is essentially a formal or titular one.⁵¹

Even if s 68 were to be interpreted as a source of the exercise of the so called

“prerogative power”, the decision to commit troops to combat in Iraq in March

2003 was not a decision of the Governor-General in Council.

In this context, it is instructive to examine how provisions similar to s 68 of the Commonwealth Constitution are entrenched in the Constitution of the USA.

President, Congress and the War Power in the US Constitution

The Constitution of the USA establishes a presidential-executive system of government. Among the powers of the President is his/her role as Commander in Chief. Article II, s 2 of the US Constitution provides:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States ...

50 At the beginning of the 2003 Iraq War, the following comments were made in the Senate by the Senator Robert Ray:

As defence minister during the previous Gulf War ... any request by the then opposition for briefings were met. Major General John Baker, then head of DIO, briefed the then opposition leader, Mr John Hewson, on at least a weekly basis. I am sure that this government will use that as a precedent and follow suit.

Commonwealth, Parliamentary Debates, Senate, 19 March 2003, (Senator Robert Ray).

51 In this regard see Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91. The decision in Coutts v

Commonwealth is briefly discussed in L. Zines, supra n 41 at 250, n 2.

Professor Tribe has explained this provision as in the following way:

The Framers, in all likelihood, thought that bestowing this title upon the Chief Executive did little more than place him at the apex of the military hierarchy ...⁵²

Although the US establishes the President as Commander in Chief, it reposes in Congress the power to declare war.⁵³ Until the War Powers Resolution was adopted in 1973,⁵⁴ the US Congress acquiesced in decisions of the President on foreign military campaigns. Under the provisions of the War Powers Resolution, the constitutional power of the Congress has been linked to the Commander in Chief clause so as to restrain executive deployment and use of US armed forces.

[I]n the War Powers Resolution of 1973 ... Congress linked its powers under the necessary and proper clause ... with the Commander in Chief clause so as to restrain executive deployment of United States armed forces. It did so by enumerating the circumstances in which deployment abroad is permitted, and by limiting such deployment in any situation to sixty days unless Congress, in the interim, passes authorizing legislation ... ⁵⁵

It is because of this requirement that the US President sought prior Congress approval for deployment of US troops in the 1991 and 2003 Iraq wars. This was granted by Congress.

The Constitution of the USA establishes a presidential-executive type of government. Although under the assumptions of a presidential-executive type of government and the provisions of the US Constitution, the President and members of the Executive are ‘responsible’ to the Congress, the War Powers Resolution of 1973 explicitly requires congressional approval to deploy US troops abroad and commit them to combat. It is acknowledged that the War Powers Resolution of 1973 is based on this entrenched ‘war power’ of Congress. Nonetheless, the Executive did not seek approval for engagement in foreign combat until 1973, and there is scope for an argument that such approval is not required within the scheme of presidential-executive type of government.

The US system tends to separate the role of the Legislature and the Executive (embodied in the President) as much as possible. Still so, the War Powers Resolution makes the President accountable to Congress in relation of the

52 L. Tribe, American Constitutional Law (1988) 231.

53 Constitution of the USA, Article II, s 8.

54 87 Stat. 555, Public Law 93-148, 93d Cong H.J. Res. 542, adopted over presidential veto on 7 November 1973.

55 Tribe, supra n 52 at 234-235.

‘war power’. In a parliamentary-executive system of government (responsible government) like Australia where executive responsibility to the Legislature is a pivotal feature, the case for parliamentary accountability is much more persuasive.

It has already been pointed out that in the 2003 Iraq conflict, the Cabinet took recourse to dubious tactics by first ‘pre-deploying’Australian troops and then committing them to combat. Parliament was presented with a fait accompli afterwards and the House of Representatives passed a resolution supporting it. Since, in the absence of express provisions in the Constitution or in any other law, it can be controversial whether parliamentary approval is a strict requirement for deployment of Australian troops in foreign combat and the timing for such approval it is imperative that there be legislation in this regard. This is considered in the next section.

v. a prOpOSed deFence pOwerS act

The discussion has persuasively indicated that are significant controversies, in terms of constitutional law and theory, about the power of the Executive in Australia to deploy troops in foreign combat. Professor Lindell, for example, has agreed that:

[I]t is true that serious doubts have been raised regarding the constitutional ability of the parliament to control the exercise of prerogatives which form part of the executive power of the Commonwealth under s 61.⁵⁶

It is best that these contentious questions are resolved by clarifying the issues in legal terms. This can be done into two ways – either by constitutional amendment or by ordinary legislation by recourse to ss 51(vi) and 51(xxxix). In view of the cumbersome procedure for amending the Commonwealth Constitution and the poor record of success of efforts in this regard, “[i]t would be more realistic to achieve the change by the passage of ordinary legislation.”⁵⁷

In this regard, while recognizing the existence of ‘prerogatives’, Professor

Lindell has observed that:

56 G. Lindell, ‘Authority for War’ (May-June 2003) About the House 23, 24.

57 Ibid.

consistent with the traditional understanding of the British system of government, legislation can be enacted to strengthened parliamentary control over the executive branch of government in the exercise of its prerogative powers.⁵⁸

There is no disagreement therefore that legislation may be adopted to control and regulate the executive power of war and deployment of Australian troops to foreign combat. The proposed legislation may variously be called the Defence Powers Act, the Emergencies Act or the War Powers Act. With regard to the Commonwealth Parliament’s role in regulating the exercise of the executive power to deploy troops in combat, some guidance can be drawn from the unsuccessful Bill that the Australian Democrats proposed on 27 March 2003, and from the War Powers Resolution of 1973.

In the Defence Amendment (Parliamentary Approval for Australian Involvement in overseas Conflicts) Bill 2003, the Australian Democrats sought to amend the Defence Act 1903 (Cth) by requiring a proclamation of emergency by the Governor-General and approval by Parliament for deployment of troops abroad. Among the various provisions so the Bill, parliamentary approval meant approval of both Houses of Parliament. The Bill also required that, if not in session, Parliament would be summoned to consider approval of the proclamation within 2 days of the proclamation being made.⁵⁹

The executive-legislative relationships in the Australian and US constitutional schemes are different. The entrenched provisions in the US Constitution on the Congressional power of war, and the President’s commander in chief role are also at variance with the express provisions of the Commonwealth Constitution and their conventional understanding. Despite the disparateness of the executive-legislative relationships in the Australian and US constitutional schemes, some provisions of the US War Powers Resolution of 1973 are also instructive for a future Defence Powers Act in Australia.

Under the provisions of the US War Powers Resolution of 1973, there must be consultation between the President and Congress. Section 2(a), which makes provisions in this regard, has been interpreted to mean that the consultation is to occur in ‘every possible instance’ before American troops are introduced

58 Ibid. In this regard, the observations of L. Zines, supra n 41 at 262-263, 267 and 269-270, are highlighted. Attention is also drawn to the observation of the High Court in Brown v West (1990) 169 CLR 195, 202:

Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute.

59 Commonwealth, Parliamentary Debates, Senate, 27 March 2003 (Senator Bartlett).

into hostilities.⁶⁰ The President may, however, act without prior consultation in some situations. In such an event, the President is required to submit, within

48 hours, a written “report” to Congress stating:

(a) the circumstances necessitating the introduction of United States

Armed Forces;

(b) the constitutional and legislative authority under which such introduction took place; and

(c) the estimated scope and duration of the hostilities or involvement. [s

4]

Section 5(b) lays down that:

Within sixty calendar days after a report is submitted ... the President shall terminate any use of the United States Armed Forces unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.

Section 5(b) incorporates some flexibility by introducing provisions to the effect that the “sixty-day period shall be extended by no more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”⁶¹

In the proposed Defence Powers Act for Australia, reference might be had to the Constitution of a newer Commonwealth country with a parliamentary executive type of government, India. After repeated ‘abuse’ by the Executive of entrenched and detailed emergency powers, the Indian Constitution has been progressively amended to strengthen legislative control of executive emergency powers, albeit after a proclamation of emergency has been made by the Executive. Since the incorporation of amendments to Article 352 of the Indian Constitution, it is stipulated that every proclamation of emergency made by the President (on Cabinet advice) must be approved by both Houses of Parliament within one month, failing which the ‘proclamation’ shall cease to operate. Provisions have also been made for situations when Parliament is not in session when a ‘proclamation’ is made, or where the dissolution of

60 Tribe, supra n 52 at 235, referring to the Grenada incident in 1983, and to the use of US

forces to evacuate Americans and South Vietnamese from Saigon in 1975.

61 In the First Gulf War (1991), and in the 2003 Iraq War, there was prior Congressional approval under s 2(a), ostensibly to avoid the strictures of ss 4 and 5(b).

Parliament takes place during the one-month period. The current provisions of Article 352 also provide for periodic review of the operation of a ‘state of emergency’. A proclamation of emergency once approved by Parliament can only operate for a six month period. Any continuation beyond the six-month period would require new parliamentary approval. Specific parliamentary majorities are required for approving both an original proclamation, and any subsequent extension. The President must revoke a proclamation of emergency, or its variation, or continuance, if Parliament passes a resolution to that effect.⁶²

vi. CONCLUSION

The pre-deployment, or ‘forward deployment’ as the Government termed it, of Australian troops to the Middle East in January 2003, the Cabinet decision to commit them to actual combat on 16 March, and the announcement of the presence of Australian SAS troops on 21 March 2003, as soon as the US-led invasion began, can be described as dubious and an ‘abuse’ of executive power, and contrary to constitutional rule. Parliament was faced with a fait accompli, and although the House of Representatives, dominated by the Government, passed a resolution supporting the action, the Senate rejected the move.

The decision of the Australian Government to enter the Iraq war was not based on secret information that could not be made public. As discovered later, the claims of WMD, the threats posed by Iraq, and similar assertions, were all conjured. There was therefore ample scope for wide parliamentary deliberations and a prior agreement between Parliament (both Houses) and the Executive to reach a decision whether it was justifiable to go to war.

In order that such instances may not be repeated in future, it is imperative that legislation like the proposed Defence Powers Act, by whatever name it may be called, be adopted. In drawing up such a law it may be instructive to look at some of the provisions of the Australian Democrats Bill of 2003, the Defence Amendment (Parliamentary Approval for Australian Involvement in Overseas Conflicts) Bill 2003, the US War Powers Resolution of 1973, and the Indian Constitution. The adoption of such an Act would put at rest the controversy and confusion over the executive and legislative powers, and their interrelationship in a war or external emergency situation. It would also put an end to the semantics of the so called ‘prerogative’ of war and its conclusive displacement by a statutory rule.

62 For a detailed study of emergency powers in the Indian Constitution see, for example, I.

Omar, Emergency Powers and the Courts in India and Pakistan (2002).

In 2003, Australia was not faced with Iraqi aggression, nor was it acting in self defence. In situations like these, the proposed statute should provide for substantive consultation between the Executive and Parliament, and approval by both Houses of Parliament for deployment of troops and committing them to combat. There might be situations where secret intelligence is concerned and immediate action is required. Prior approval would not then be a pre-requisite. But like the relevant provisions of the US War Powers Resolution of 1973 and the Indian Constitution, the decision should be conveyed to Parliament promptly, and supported by both Houses of Parliament. The sixty-day time limit for approval of a proclamation in extraordinary circumstances required by US War Powers Resolution, and the thirty-day time limit for approval of an emergency proclamation under all circumstances, are sufficient time- limits for parliamentary approval. A time period along these lines should be incorporated in the proposed Act. Australian troops sent to Iraq in 2003 are still there in combat operations, and debates in Parliament about a time frame for their return have been overtly partisan and politically opportunistic. About the middle of 2004, there were stormy debates in Parliament between the Opposition, who wanted the troops back before Christmas, and the insistence of the Government on the continuing threat in Iraq justifying presence of Australian troops. This became an election issue. In the proposed Defence Powers Act for Australia, it is imperative therefore that provisions be included for a specific time frame for a war emergency to continue. These provisions can be along the lines of the US War Powers Resolution of 1973 and the Indian Constitution.